IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.8630/2015 (MV) BETWEEN:
SMT. NANJAMMA W/O MANJUNATH AGED ABOUT 32 YEARS PERMANENT RESIDENT OF KARAHALLI VILLAGE CHANNAKATHUR POST KRISHNAGIRI TALUK & DISTRICT TAMILNADU.
PRESENTLY RESIDING AT NO.1060, WEAVERS COLONY BANNERGHATTA MAIN ROAD BANGALORE – 83.
(BY SRI.GOPALKRISHNA N, ADV.) AND:
1. SMT. RATHNAMMA W/O SATHYANARAYANA MAJOR IN AGE SRI RANGA VILAS MOTORS HOSUR CATTLE FARM POST HOSUR, DHARMAPURI DISTRICT TAMILNADU-635110.
...APPELLANT 2. THE UNITED INDIA INSURANCE CO. LTD., 5TH FLOOR, KRUSHI BHAVANA NRUPATHUNGA ROAD HUDSON CIRCLE BANGALORE - 560001 REP. BY ITS MANAGER.
…RESPONDENTS (BY SRI. O MAHESH, ADV. FOR R2 R1- SERVICE OF NOTICE H/S V/O DT:22.11.2017) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.01.2015 PASSED IN MVC NO.7557/2011 ON THE FILE OF THE MEMBER, PRINCIPAL MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimant is in appeal, aggrieved by the judgment and award dated 06.01.2015 in MVC No.7557/2011 on the file of the Principal Motor Accident Claims Tribunal, Bangalore (hereinafter referred to as 'the Tribunal' for short) to the extent of saddling liability on respondent No.1/owner of the offending vehicle.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the injuries sustained in the motor vehicle accident involving the bus bearing registration No.TN-29/W- 9225. The accident that occurred on 13.09.2011 involving the above bus and injuries sustained by the claimant is not in dispute in this appeal. The claimant is also not disputing the quantum of compensation awarded by the Tribunal in a sum of Rs.2,94,840/- with interest at the rate of 6% p.a., from the date of petition till realization.
3. Heard the learned counsel for the appellant and learned counsel for the respondent/insurer. Perused the material on record.
4. The only contention urged by the learned counsel for the appellant is that the Tribunal committed an error in saddling the liability on respondent No.1/ owner of the offending bus instead of respondent No.2/insurer. It is his submission that the respondent/ insurer has failed to prove that the vehicle in question was not having valid permit as on the date of accident. As such, the insurer could not have been absolved of its liability.
5. Per contra, learned counsel for the respondent/insurer would submit that the Tribunal rightly saddled the liability on the first respondent/owner of the bus, since the bus was not having permit to ply on the road as on the date of accident. Ex.R4-endorsment issued by the RTO would demonstrate that no such permit was issued in respect of the bus in question. Thus, he prays for dismissal of the appeal.
6. Having heard the learned counsel for the parties and on perusal of the material on record, the only point which falls for consideration is as to “whether the Tribunal is justified in saddling the liability on respondent No.1/owner of the bus?”
7. Answer to the above point would be in the negative for the following reasons:
The accident that had taken place on 13.09.2011 involving the bus bearing registration No.TN-29/W-9225 is not in dispute in this appeal. The only grievance of the claimant/appellant is that the Tribunal committed an error in saddling the liability on respondent No.1/owner of the offending bus on the ground that the bus in question was not having permit to ply on the road where the accident occurred. On perusal of Ex.R4/endorsement issued by the RTO, Dharmapuri, it is clear that no permit was issued in respect of the vehicle bearing registration No.TN-29/W-9225 on the route Krishnagiri to Malur. Admittedly, the accident had taken place near Industrial Area on Malur-Hosur road, Malur Taluk, Kolar District. From Ex.R2, it is clear that the vehicle was not having permit to ply on Malur-Hosur road. Thus, it is the case of plying vehicle without permit. But, the Hon'ble Apex Court in the case of AMRIT PAUL SINGH AND ANOTHER v/s. TATA (AIG) GENERAL INSURANCE CO. LTD., AND OTHERS reported in (2018) 7 SCC 558 case at paragraph 24 has held as under:
24.In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh and other cases pertaining to pay and recover principle.”
The above decision of the Hon'ble Apex Court would make it clear that wherever there is no permit or non- renewal of permit, it is for the insurer to first pay the compensation with liberty to recover the same.
8. Following the above decision, I am of the view that in the present case also the insurer is liable to pay the compensation awarded at the first instance and the insurer would be at liberty to recover the same from the first respondent/owner of the offending bus. Thus, the appeal is allowed in part. The judgment and award dated 06.01.2015 in MVC No.7557/2011 on the file of the Principal Motor Accident Claims Tribunal, Bangalore is modified to the above extent.
Sd/-
JUDGE mpk/-* CT:bms